Decision Opens Debate On Wiretap Inquiry

Discretion Or Double Standard For Police

Decision Not To Prosecute Opens Legal Debate On Wiretap Probe

September 06, 1992|By MATTHEW KAUFFMAN; Courant Staff Writer

In the early weeks of their investigation of secret wiretaps at state police barracks, federal agents had thousands of documents, hundreds of tapes and a single burning question: Did the state police install telephone-taping equipment as part of an illegal scheme to listen in on criminal defendants?

Authorities concluded that the answer was "no," and made a tentative decision that the mere existence of routine secret recordings would not justify a broad-based criminal prosecution, U.S. Attorney Albert S. Dabrowski said.

Federal agents spent the rest of the investigation chasing down claims of individual abuses. But that early conclusion -- reached more than 2 1/2 years ago -- emerged publicly last week with Dabrowski's announcement that he would not charge state police with violating federal wiretap laws.

The decision may end Dabrowski's involvement in the case, but it opened a debate among some lawyers over whether federal authorities used reasonable discretion in declining to prosecute, or skewed the rules to favor fellow law-enforcement officials.

"I think it's a classic example of a double standard," New Haven lawyer John R. Williams said. "They have a conflict of interest that's just built-in."

Williams said he is representing a man going through a divorce who was indicted for secretly recording his wife's calls to others.

"If they're doing it in a domestic-relations case, a run of the mill domestic-relations case, and they don't do it for state police officials . . ., I just don't understand this -- well, I do understand it and it's very depressing."

Hugh Keefe, a New Haven lawyer who has represented clients on both sides of the wiretap scandal, said Dabrowski made the right decision, even if the state police practice was technically a violation of the wiretap laws.

"You just don't arrest everybody that you can technically arrest," Keefe said. "You don't apply criminal law every time you

can."

Keefe said the police who operated the recording equipment were not "bad, vicious guys," and said shortcomings in the system were better handled in the civil courts and through administrative discipline. After the tape recording came to light in November 1989, state police Commander Cmdr. Lester Forst was replaced, and a class-action lawsuit was filed against the state.

Dabrowski said his decision was more straightforward than either Williams or Keefe suggest.

"The first thing we looked at, and it was an easy issue, is whether or not the original installation of the equipment was for legitimate purposes. And it was," Dabrowski said.

State police officials have said the equipment, acquired in the late 1970s, was installed to record emergency and investigative calls. The police were supposed to use signs and labels to advise phone users that the calls were taped. But compliance was spotty, and over time, warnings that were put in place faded or were removed.

Virtually every telephone call that was made from state police barracks -- from incriminating calls between defendants and lawyers to benign calls between a trooper and spouse -- were recorded by the police.

"I think the system was fraught with problems," Dabrowski said. "But the fact that that system broke down does not automatically convert these individuals into criminals."

So federal investigators set their sights on specific calls, looking into allegations that particular phone conversations had been reviewed to give detectives a strategic, and illegal, advantage.

The agents found nothing Dabrowski was willing to take into court.

"I concluded there was insufficient admissible evidence to sustain, support or warrant a federal criminal prosecution," he said. Dabrowski would not provide details of the allegations.

The decision was not, Dabrowski said, a vindication of the state police or an indication that there was no evidence of criminal wrongdoing.

Some are rankled, however, by the sharp distinction Dabrowski draws between the catch-all recording done in every state police barrack, and the patently improper eavesdropping the agents spent most of their time pursuing.

The distinction is one of intent, and some say the fact that the practice began legitimately and devolved into unlawfulness should not spare those involved. Particularly, they say, when those involved are police officers.

"One expects law-enforcement officials to be more knowledgeable about the criminal law and its various aspects," said William Olds, executive director of the Connecticut Civil Liberties Union. "Ignorance of the law is not a defense, and I don't think there should be a double standard for law enforcement."

Olds said he recalls legislative hearings during which state police officials requested broad access to wiretaps, and insisted they were sensitive to the potential for abuse.

"That kind of testimony before groups like the judiciary committee suggests they certainly knew where the lines are in the criminal law," Olds said.

The decision not to prosecute does not end the state police's

legal troubles. Still pending is the class-action suit, which may involve thousands of people whose calls were taped.

R. Bartley Halloran, one of the lead attorneys in the case, said Dabrowski's decision made the success of his own lawsuit more critical.

"It shows that unless there is a civil penalty for this thing, there will be no punishment at all," he said